Is Immigration Law National Security Law?

Wadhia, Shoba Sivaprasad, Emory Law Journal

Introduction

The debate around how to keep America safe while welcoming newcomers is prominent. In the last year, cities and countries around the world, including Baghdad,1 Dhaka,2 Istanbul,3 Paris,4 Beirut,5 Mali,6 and inside the United States,7 have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.8

This Article is based on remarks delivered at the Emory Law Journal's annual Thrower Symposium on February 11, 2016.9 The Article explores how national security concerns have shaped recent immigration policy in the Executive Branch, congress, and the states and considers the moral, legal, and practical implications of these proposals. Finally, this Article examines the parallels between these proposals and immigration policies enacted after September 11, 2001.

In the Executive Branch, President Barack Obama committed to admitting 10,000 refugees from Syria.10 In contrast, the Administration made a choice to detain central American women and children in newly constructed correctional facilities known as "family detention center^]."11 The Department of Homeland Security's (DHS) published enforcement priorities for removal lists "threats to national security, border security, and public safety" as the highest priority.12 Other enforcement priorities include recent border crossers and immigration violators.13 DHS has relied on this framework to participate in unannounced enforcement actions (raids) to arrest and deport Central American moms and children.14

On the presidential campaign trail, President Donald Trump moved to halt immigration for Muslims and normalized the platforms of other candidates to label Syrian refugees as "rabid dogs" and limit refugee admissions for Muslims.15

On Capitol Hill, Congress has debated, amended, shredded but not passed a comprehensive immigration reform bill in twenty years. Though Congress cannot reach an agreement on immigration reform, it has proposed or passed various proposals to restrict refugee admissions and visa-free privileges based on nationality16 with full support and implementation by DHS.17

In the states, dozens of leaders vowed to reject Syrian refugees though the legal ability to do so is questionable.18 The majority of these states are also plaintiffs in a lawsuit challenging the legal authority for the President to implement deferred action, a longstanding form of prosecutorial discretion in immigration law.19

These immigration proposals emerged on the heels of devastating events around the globe. They also produce a flashback to many policies enacted by the Executive Branch after September 11, 2001. The prominence of immigration in the national security debate has been controversial and has legitimized a selective enforcement policy drawn along lines of race, religion, nationality, and citizenship.20 The vestiges of 9/11 also reveal how immigration laws borne out of national security concerns can result in everlasting damage for affected individuals and families.

I. Executive Branch

A.Refugees

In the Executive Branch, President Obama committed to admitting 10,000 refugees from Syria (among the 4.5 million estimated refugees).21 The Administration engaged in public education about the structure of the United States refugee resettlement program, which involved an elaborate interviewing process and security check.22 Meeting the legal definition for refugee is no easy task and requires the individual to show past persecution or "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."23 Individuals who have committed certain crimes do not qualify.24 According to the Department of State, a refugee undergoes eighteen to twenty-four months of processing before arriving in the United States.25

Most refugees are initially referred to the United States government by the United Nations High Commissioner for Refugees (UNHCR). …

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